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Supreme Court 13 December 2004

Regina v Keir

[2004] NSWSC 1194

HomicideDomestic & family violence
SENTENCE MURDER HUSBAND KILLS WIFE.

Citation: Regina v Keir [2004] NSWSC 1194
Court: Supreme Court of New South Wales
Date: 13 December 2004
Judge(s): M W Campbell AJ

Background

The accused was convicted before Campbell AJ, sitting without a jury, of the murder of his wife at Tregear on or about 9 February 1988. The conviction arose from a second retrial. The accused had previously been convicted twice before different juries on the same charge and sentenced each time: first by Adams J to 24 years (minimum 18 years), and then by Kirby J to 22 years (non-parole period of 16 years). On each occasion the Court of Criminal Appeal ordered a further retrial.

The murder occurred after a deteriorating marriage. The accused had made repeated threats to kill his wife if she left him or became involved with someone else. On the night in question, she returned to the family home after the accused had earlier compelled her to travel with him against her will. She was murdered that night. The following day, the accused engaged in a deliberate course of deception to conceal the killing and create the impression that his wife had simply left him.

The sentence proceedings before Campbell AJ focused primarily on whether the sentence imposed by Kirby J should be increased, maintained, or reduced.

  • Whether, on a second retrial resulting in conviction, the sentencing judge was bound or constrained by the sentence imposed at the immediately preceding trial.
  • Whether the Crown had proved beyond reasonable doubt that the accused intended to kill his wife, rather than merely intending to cause her grievous bodily harm, and whether that finding justified a higher sentence.
  • What weight, if any, should be given to victim impact statements in determining the appropriate sentence.
  • Whether the accused's placement in limited protection within custody was a relevant mitigating factor.

Decision

Campbell AJ applied the principle established in R v Gilmore (1979) and confirmed in R v Bedford (1985-86): on a retrial following a quashed conviction, a sentencing judge should not ordinarily impose a longer sentence than that imposed at the prior trial. The word "ordinarily" preserves judicial discretion, but any departure requires specific justification. Because the immediately preceding sentence imposed by Kirby J was 22 years with a 16-year non-parole period, that sentence operated as the prima facie ceiling.

The Crown's sole argument for a higher sentence was that Campbell AJ should find, beyond reasonable doubt, that the accused intended to kill his wife rather than cause grievous bodily harm. Both Adams J and Kirby J had declined to make that finding, each concluding that intent to kill had not been proved to the requisite standard. After further consideration, Campbell AJ reached the same conclusion, finding the evidence insufficient to establish intent to kill beyond reasonable doubt. Without that finding, no basis existed to exceed the sentence imposed by Kirby J.

Campbell AJ declined to treat the victim impact statements from the deceased's mother as a factor affecting the sentence. Consistent with the principles in R v Previtera and R v Bollen, and with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, he held it would be contrary to principle to allow that material to elevate the sentence. The accused's limited-protection custody status was noted but not accorded sufficient weight to alter the outcome.

Orders Made

  • The accused was sentenced to a term of imprisonment of 22 years, commencing 20 February 1998 and ending 19 February 2020.
  • Non-parole period of 16 years, with eligibility for release on parole on 20 February 2014.

Key Takeaways

  • The principle from R v Gilmore, as refined in R v Bedford, establishes that a sentencing judge on retrial should not ordinarily exceed the sentence imposed at the preceding trial, though this is a prima facie position rather than an absolute fetter.
  • Departing upward from a prior sentence requires specific, identified reasons; where the Crown advances only one basis for departure and that basis is not made out, the prima facie position governs.
  • Where two prior sentencing judges each declined to find intent to kill beyond reasonable doubt on materially similar facts, a third judge on retrial is not bound by those findings but may reach the same conclusion after independent assessment.
  • Victim impact statements do not operate as a factor increasing the sentence in murder cases of this kind, consistent with the approach in R v Previtera and R v Bollen and the Crimes (Sentencing Procedure) Act 1999.
  • A sentence at the upper end of the range identified in comparable cases will be maintained where the nature of the offending is assessed as falling within that upper range, even across successive retrials.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 28(4)(b), 44(2)
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v Gilmore (1979) 1 ACrimR 416
- R v Bedford (1985-86) 5 NSWLR 711
- R v Merritt [2000] NSW CCA 365
- R v Previtera (1997) 94 ACrimR 76
- R v Bollen (1998) 99 ACrimR 510
- R v Nixon (NSW CCA, unreported, 31 October 1995)